"(3) In determining custody of a minor child under ORS 107.105 or
107.135, the court shall consider the conduct, marital status, income, social
environment or life style of either party only if it is shown that any of these
factors are causing or may cause emotional or physical damage to the
child."

A trial court's evaluation of those criteria in reaching a custody decision is entitled to
careful consideration, particularly when credibility determinations are involved. Sleeper and Sleeper, 145 Or App 165, 173, 929 P2d 1028 (1996), aff'd, 328 Or 504, 982 P2d
1126 (1999). Still, we exercise de novo review, ORS 19.415(3), and it is ultimately our
own responsibility to "examine the evidence in the record and reach our own conclusions
as to what is in the best interests of the child." Holcomb and Holcomb, 132 Or App 498,
502, 888 P2d 1046, rev den, 321 Or 94 (1995) (quoting Sleight and Cazone, 100 Or App
325, 328, 786 P2d 202 (1990)).

We begin by noting the importance of the existence of an outstanding
FAPA order against father at the time of trial. ORS 107.137(2). Under ORS 107.710, in
order to obtain a FAPA restraining order, a petitioner must prove, by a preponderance of
evidence, that he or she has been the victim of "abuse," as that term is defined in ORS
107.705. Under ORS 107.137(2), in turn, "if a parent has committed abuse, as defined in
ORS 107.705," a rebuttable presumption arises against awarding custody to the abusing
parent. Thus, when mother established the predicate for obtaining the FAPA order
against father, she established the predicate for a presumption that it is not in the best
interests of the children to award custody to father.

The trial court, as we noted, discounted the importance of the FAPA order,
because it concluded that those orders "have come to have little credibility per se,
especially if they are uncontested." In this case, however, the record shows that mother's
petition for a FAPA order was not uncontested and that, in fact, father was represented by
counsel at the FAPA hearing.

Father likewise discounts the importance of the FAPA order on the ground
that we do not know the specific allegations of abuse that formed the basis for the
issuance of the order and because "the statutes make a FAPA order so easy to obtain that
just about anyone at any time telling the court nearly any story can obtain one." Father,
however, neglects to address the fact that, whatever the particulars of the allegations of
abuse happened to be, the fact remains that, before issuing the FAPA order, the court
necessarily found that "abuse" within the meaning of ORS 107.705 occurred, and it is
precisely the same "abuse" that triggers the presumption against an award of custody. We
turn, then, to an examination of the record to determine whether the evidence is sufficient
to rebut the presumption that it is not in the best interests of the children to award custody
to father. We find insufficient evidence to rebut that presumption.

Both parents demonstrate a strong interest in the children. ORS
107.137(1)(b). Mother, however, has been the primary caregiver, and that favors her in
the custody determination, ORS 107.137(1)(e), especially in light of the young age of the
children. See Boldt and Boldt, 104 Or App 379, 382, 801 P2d 874 (1990) ("[A]ll other
things being equal, small children should go with the caretaking and more nurturing
parent.").

Additionally, the evidence does not persuade us that mother is presently
unfit. ORS 107.137(1)(e). Father presented evidence of events from more than four
years before the dissolution trial reflecting poorly on mother, but he offered no evidence
reflecting poorly on mother's current parenting. In contrast, mother presented the
testimony of several witnesses who have known her during the year before trial and who
described her as an exemplary parent. As to his own parenting skills, other than his own
testimony, the only evidence that father presented was that of the CAFA visitation
supervisor, who expressly disclaimed the ability to recommend that father have
unsupervised visits with the children, let alone custody, and who stated that father would
benefit from continued supervised visits.

The children are closely bonded to their half-siblings and have a
relationship with mother's family, whom they see regularly. Awarding custody to mother
would facilitate those relationships. ORS 107.137(1)(a). The evidence also shows that
mother will also facilitate the children's visits with father. ORS 107.137(1)(f).

Considering each of the factors set out in ORS 107.137(1), we conclude
that the best interests of the children require that mother be awarded custody.
Necessarily, we also reverse the trial court's award of child support to father and remand
for reconsideration of child support.

Mother also assigns error to the trial court's failure to award her transitional
spousal support. Transitional spousal support may be awarded "[a]s needed for a party to
attain education and training necessary to allow the party to prepare for reentry into the
job market or for advancement therein." ORS 107.105(1)(d)(A). Among the factors that
are to be considered in evaluating a request for transitional support are the duration of the
marriage, a party's training and employment skills, the party's work experience, the
financial needs and resources of each party, and the party's "custodial and child support
responsibilities." Id.

Mother contends that she is entitled to transitional support to enable her to
pursue a degree in early education so that her work schedule will be similar to the
children's school schedule. She requests $300 per month in transitional support for three
years to allow her return to school at Lane Community College.

Father opposes the request. He contends that mother does not need spousal
support, because she lives in subsidized housing and has other financial resources,
including supplemental security income for the daughter, child support for the two older
children, and food stamps. Father asserts, further, that mother prefers not to work and
that her expressed interest in pursuing further education is not genuine.

We have ordered a change in custody and remand the case to the trial court
for reconsideration of child support. Given that those changed considerations are among
those that are to be taken into account under the statute in determining whether to award
transitional support, we also remand the case for the court to reconsider its determination
not to award spousal support.

Dissolution judgment modified to award custody of children to mother;
award of child support to father reversed; remanded for reconsideration of child support,
the development of a parenting time schedule, and consideration of spousal support.